Whereas Dutch people often do not know the contents of their prenuptial agreement, or, if they do not have a prenup, what they are entitled to according to the law, expats often do not even know which law applies to their marital property regime (MPR), especially if they have not drawn up a prenup.
This year, my firm has decided to promote awareness of the issue of the marital property regime. It has chosen to do so this autumn, as a follow-up to D-Day, Divorce Day, which is organised every year in September by the Dutch Association of Family Lawyers and Divorce Mediators (vFAS).
Years ago already, the vFAS referred to divorce as a social phenomenon, and focused on the need for creating awareness on how to handle one. Specifically, on how to avoid a high-conflict divorce and pursue, if possible, a divorce settlement and a parenting plan. In general, the best thing to aim for is a settlement, at least from a professional point of view. And by professional point of view, I mean professionals such GPs, schoolteachers, psychologists and of course, good family lawyers. The impact of a divorce can be huge on both a micro and a macro level.
My firm participates in D-Day activities every year by offering free introductory interviews. All year long, however, we offer free introductory interviews of 30 minutes, specifically for the purpose of diagnosing the client’s situation in case of a divorce. To those whose marital property regime is unclear or whose prenups appear to be inadequate, we also offer an introductory interview.
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Having some expat experience myself, I am aware of the pleasures of the privileged expat life, which include all kinds of allowances and tax privileges. As a family lawyer, however, I also know that expat families are often not aware of the challenges that accompany an international career – for experience shows that almost one out of two expat relationships fail. Which is why it is imperative that expats are aware of the several ways to end a marriage, or that at least this information is accessible to expats. Especially when it comes to the implications of their expat career for their marital property regime (MPR), preferably before they become caught up in a divorce.
What to think of the Dutch/Swedish couple, who married in Amsterdam without a prenup just before they moved to Dubai – which was therefore their first matrimonial domicile – and who later moved to Mongolia and have now moved back to Amsterdam (at least the Dutch wife)? Or the Russian/British couple who married, without entering into a prenup, in a lovely chapel on Cyprus, after which the husband was transferred to Nigeria, followed by Houston and only recently The Hague, where the whole family now resides? Or the American/Dutch couple who had always lived in Wassenaar, but had gotten married in New York, where the American wife had been given a nice apartment by her father as a gift, and who was never aware of the risk that this gift could be considered part of any community of property?;
Of course I can explain the international conventions a Dutch judge is (likely) to follow, but the international conventions are not always unambiguously applied. And, if another foreign court is considered to also have jurisdiction, the interpretation given by this foreign judge could be different. Especially if this country is outside the EU. But also within EU, for instance in the UK or Denmark, a judge might come to different conclusions. This could be a reason for ‘forum shopping’, especially in case of a high-conflict divorce. However, if the spouses want to investigate real solutions to real issues, this is best done at a mediation table.
Luckily, expats are often open to investigating solutions through mediation. When they choose to sit at my table, I inform them that the most important asset of mediation is the fact that they have to work on the solutions together. Another important factor is the fact that the legal situation can be cleared up or adjusted whenever desired. It is up to me to facilitate a safe environment in which the couple can freely express themselves and investigate reasonable solutions – with, of course, the necessary help, knowledge of international law and creativity.
As far as the marital property regime is concerned, it sometimes turns out that it is, after all, favorable to make a (new) marriage contract when a divorce is looming on the horizon, or at least to draw up a notarial deed regarding the choice of applicable matrimonial law. This, in order to create a fair, reasonable and sustainable outcome for the parties themselves that will be accepted by the tax authorities as well.
As a family lawyer, I always try to empower my divorce clients, by reminding them that a divorce is a transfer from married life to life after marriage. From my experience, expats, more than average, are capable of thinking this way.
When it is not likely that I or any other mediator will be able to guarantee the necessary conditions or environment for mediation, parties can try ‘collaborative divorce’, whereby both parties have their own lawyer who protects their interests. These lawyers, however, more or less assume the position of mediator when addressing the divorce-related issues. The common goal of all parties concerned is to reach the best solution possible for both partners. A coach with a psychological background manages the process, pointing out at an early stage any possible problems concerning children, and offering guidance on the issue. In financially complex cases, an independent financial advisor or tax advisor can be involved, also from abroad.